Re: Copyright

PTravel wrote:
> "lenny fackler" <trux.royale@xxxxxxxxx> wrote in message
> news:1125538302.646501.112750@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
> >
> > PTravel wrote:
>
>
> > > Seriously? Ask a lawyer. I'm sure there's information around written
> for
> > > laypeople, but, unfortunately, I'm not familiar with it.
> >
> > I did and she said basically the same things you are saying. I guess I
> > just can't get it through my head. I happen to believe that (music)
> > file sharing is beneficial to the vast majority of musicians but that's
> > neither here not there as far as laws are concerned. Or maybe it is.
> > I don't know.
>
> It's absolutely irrelevant. Even assuming the musicians own the copyright
> to the recording (and most don't), copyright grants the absolute right to
> control a protected work, meaning it doesn't matter whether it's beneficial
> for them (or for you) -- if they say, "no," that means no.
>
> "Benefit," as an exception to infringement (or, more accurately, as a
> defense) applies only in the context of fair use. The benefit that's
> considered in fair use analysis is benefit to the goals of the First
> Amendment, i.e. increasing core value speech.
>
> > > Again, I have no idea. However, as I said, this isn't a complicated
> factual
> > > situation -- violate the distribution right, and you've committed
> copyright
> > > infringement. Facilitate the making of unauthorized copies by others
> and
> > > you've commited contributory infringement.
> > >
> >
> > It's hard to believe that it's such a cut and dried issue.
>
> It is. Make an unauthorized copy, and you've infringed. There are some
> exceptions, in the form of compulsory licenses, fair use as previously
> noted, certain kinds of permissible copying, e.g. backups of computer
> software. However, exceptions notwithstanding, it's infringement.
>
> > Lets say I invite a friend over and tell him he can look through my
> > cd's. I explicitly tell him not to copy anything. While I'm away he
> > makes copies anyway using his own cd burner. Would I have done
> > anything illegal?
>
> Not if you didn't know what he was up to.
>
> > What if the only thing different in the scenario is that I don't tell
> > him not to copy anything? I don't give any instructions one way or the
> > other. He burns his own copies. Now have I commited infringement?
>
> If you invited him over assuming that he would copy, and provided the means
> for him to do so, i.e. unrestricted access to your CD collection, then
> you're a contributory infringer.
>
> > In another scenario I may have called him and told him to bring over a
> > bundle of blanks because I have some music he should check out and help
> > him do the burning.
>
> Then you're the infringer, along with your friend.
>
> > Or to complicate things, some of my collection is public domain and
> > some is not. I tell him he can only copy what is not copyrighted.
>
> Then you're not a contributory infringer. If he goes ahead and copies the
> protected works, then he is. BTW, all of this disregards, for the moment,
> the AHRA, which authorizes some kinds of copying of protected audio works.

This point is interesting. Here's a theoretical example with more
detail: I'm sharing a collection of music on a peer to peer network
and at least some of the material can be distributed by me legally.
The software that interfaces with the network allows users to set up a
profile of themselves, where they can provide additional personal
information if they wish. Using that profile I provide explicit
instructions to other users not to download any file from my collection
that would be a violation of copyright law.
Just in case someone doesn't check my profile I put a warning and
instructions to download a text file as part of the folder name where
the files are stored. Any users who download from me can see the
folder name with this instruction. The text file repeats the message
that users are not allowed to download anything from me which would
violate copyright law.
If I'm monitoring the software I can see what files are being
downloaded. If I notice someone violating my policy I can end the
transfer and ban that person from having access to my collection.
However, most of the time I'm not near my computer and have no way to
watch or control which of my files are being transferred. While I'm
gone someone downloads a hot new single by the Black Eyed Peas (which I
duly purchased at Tower records and later copied to my hard drive) and
I get sued by the RIAA. Have I given myself a shot at fighting the
lawsuit?

(fyi.. probably doesn't need to be said but I am really not seeking
legal advice, just trying to learn something).

>
> > It seems to me that each of these situations might generate different
> > legal arguments.
>
> Nope, it's all the same.
>
> > Which one best resembles file sharing on a p2p
> > network?
>
> The scenario in which you invite your friend over with the assumption that
> he's going to make copies, show him where to plug in his CD burner, and then
> show him in to your music room, point out your collection, and then go out
> for lunch leaving your friend alone.
>
> >Maybe it depends on the specific software being used.
>
> Not really.
>
> > Or the
> > specific manner in which shared directories are named or configured.
>
> Nope. There's no magic trick to avoiding liability. As I said, it's not a
> close or difficult question. Did you make an unauthorized copy? Did you
> distribute an unauthorized copy? Did you facilitate someone else doing
> either? If so, you're liable.

Liable for what? How are damages established? Are there standard
fines? Is this purely civil law? Can criminal charges be brought if
there is no money involved (no profit motive)?

>
> > There are many other possible factors and variations that could come
> > into play.
>
> Actually, no.
>
> > There are also issues in how entities like the RIAA obtain an IP
> > address and how it's then matched to an individual and their alleged
> > actions online. Are their methods legal?
>
> Sure. They used a subpoena.

A subpoena to obtain a name from an ISP makes sense. But was the IP
adress obtained legally? This could be an angle of defense.

>
> > Wasn't there a case in
> > Canada that was thrown out based on something like this?
>
> I'm not licensed to practice in Canada and don't know Canadian law. It's
> entirely irrelevant to US law.

I realize canadian law doesn't apply in the US, but isn't it close
enough to brainstorm some ideas? Here's a link about the case.

http://news.com.com/2100-1027_3-5182641.html

The Canadian Recording Industry Association obtained IP addresses from
29 file swappers. The judge rejected the request to get identities
from their ISPs.

some excerpts (fair use i hope):
[begin quote]
"In his ruling Wednesday, Judge Konrad von Finckenstein rejected that
request on several grounds. In part, he said the recording industry had
not presented evidence linking the alleged file swapping to the ISP
subscribers that was strong enough to warrant breaking through critical
privacy protections.
[I assume we have less privacy protections in the US]

But he also questioned whether CRIA had a copyright case at all.

With respect to downloading, the judge accepted the Copyright Board's
early decision almost without comment.[earlier decision that
downloading probably wasn't a crime but uploading may be a crime] But
he went further, citing a recent Supreme Court decision to say that
making music available online also appeared to be legal.

In that recent case, the Supreme Court ruled that libraries were not
"authorizing" copyright infringement simply by putting photocopy
machines near books. The libraries were justified in assuming that
their customers were using the copiers in a legal manner, the high
court ruled."
[end quote]

>
> > Come on. A good lawyer outta be able to find some loopholes.
>
> 'Fraid not. The RIAA cases are most likely to run in to trouble
> establishing that it was the specific defendant, rather than someone unknown
> with access to the computer, who committed the infringement. However, bear
> in mind that circumstantial evidence is just as good as direct evidence in
> meeting the burden of proof. If the RIAA can trace the unauthorized
> distribution to a specific computer (which they easily can), and that
> computer is in a household consisting of two parents and a teenager, and the
> computer is in the teenager's room, that's circumstantial evidence that the
> teenager was responsible for the illegal file exchange. Of course, the
> teenager can rebut the evidence with evidence that her cousin had been
> visiting during the period in question, which happened to be while she was
> away at college orientation, and stayed in her room.
>
> > I would
> > go to law school myself but I'm getting kinda old.
>
> Law is my second . . uh . . . third . . . uh . . . fourth career. I went
> back to law school when was 35.
>
> > Plus I'd have to be
> > on the 'wrong' side if I wanted to make any money. ;-)
>
> Since when is protecting the interests of intellectual property owners, i.e.
> the people who create IP, or fund others to create IP, the "wrong side"?
>

I think the efforts of the RIAA to sue the fans and consumers of
commercial music is misguided. I think copyright laws (applied to
music) that restrict the cost-free distribution (sharing) of electronic
copies are too stringent and designed to protect the largest companies
and within them only the profits from records that sell in the
multi-millions. There's nothing inherently wrong with that but the
random and arbitrary enforcement of these laws on file sharing networks
is, I believe, an attempt to set examples and scare people away from
using these networks at all. There is by no means consensus in the
music industry that file sharing equates to a decrease in product
sales. Many record companies ignore file sharing or encourage it as a
means of promotion and building fan bases for their artists. If you
frighten people away from using p2p networks or sabotage the networks
by introducing junk files (common tactic of RIAA and their contractors)
it does harm to those who use the network legitimately and to the
artists and copyright holders who do want their stuff out there for the
world to hear.

.

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